Bhardwaj v FDA & Ors

I propose, in this case, to grant permission to appeal in respect of appeal number A2 2012/3045; that is to say the appeal from the decision of the EAT on the appeal to it on the grounds of apparent bias. That decision was the one handed down on 1 November 2012.

Since I am granting permission I am going to keep my comments and explanation of my decision relatively short. I do so, first of all, because, as the EAT said in its review decision of 2014, this is a troubling case. It raises important questions about how employment tribunals should proceed when a litigant or witness in proceedings before it has been appointed as a lay member of employment tribunals. It is significant that the EAT, in its 2012 decision, expressed the view (albeit obiter) that the situation which arose in this case at the employment tribunal stage did reveal apparent bias; see paragraph 45 of that decision. I also note what was said by Langstaff J (President of the EAT) when he gave permission out of time for a review (in particular, I note his comments at paragraph 14); and the position there is added to by the comments of Wilkie J after the review had taken place at the EAT when he refused permission to appeal to this court. It is worth quoting his reason for that refusal; he said this:

“Whilst I appreciate that some of the issues raised by this case may be thought to be worthy of consideration by the Court of Appeal, the current form of the application for leave does not adequately identify or articulate them or limit them. The Appellant should seek leave from the Court of Appeal and do so in a form which will enable that court to identify the points of importance and/or merit for which it should, if it so decides, grant permission to appeal.”

That appears at page 65(c)(2) of the bundle.

All of that seems to me to indicate that there is a point of general importance and it is one which, in my view, merits consideration by the Court of Appeal, which may wish to give some guidance as to how employment tribunals and those administering the tribunal system should proceed in such situations. I include in that last category, regional employment judges. So, that is the first basis on which I grant permission.

Secondly, in that same decision of 1 November 2012, the EAT concluded that the present applicant (that is to say, Miss Bhardwaj) had waived an available objection to the case proceeding before the Employment Tribunal. It is certainly the case that her counsel before the ET did indicate that no objection was taken when the first, and perhaps principal problem, was disclosed by the Employment Tribunal on 23 March 2010. This morning, Miss O’Rourke QC, has raised a number of matters which, in her submission, undermines the validity of that waiver. Other matters add to that, as set out in the skeleton argument. I do not propose to go through those various points individually, but cumulatively I do think that they disclose a sufficiently arguable case for this matter to go to the full court on that basis also; that is to say, the validity of the waiver.

Amongst the factors to be noted are those of delay and costs. The applicant apparently decided to continue before the same tribunal largely because she was paying personally for the litigation and by 23 March, when this matter was raised by the tribunal, she had already invested a significant sum in the hearing; see paragraph 47 of the EAT’s decision of November 2012. That was, on my calculation, day ten of the hearing or day twelve if one includes the first two reading days. Miss O’Rourke makes the point that both Miss Creighton and Mr Whiteman (two of the respondents we are most concerned with) had been offered appointment as lay members of employment tribunals actually before the hearing started. The offer was made on 26 February 2010 whereas the hearing began on 5 March 2010 with two reading days and the oral proceedings on 9 March.

For reasons I need not go into, but involving action or inaction on the part of various people, including those respondents and the employment tribunal system generally, the matter was not raised before or at the start of the hearing, but only on the tenth day of the oral proceedings, by which time, of course, the applicant’s costs must have risen considerably.

Miss O’Rourke contends that the applicant, when deciding not to object to the proceedings continuing, was not aware of all the material facts, including a delay in disclosing the problem, and was put under unnecessary pressure, therefore, to continue. In addition, she was not told the possible arrangements for transferring the case to another tribunal.

It may be that neither of those or the other matters raised, either orally this morning or in the skeleton, would have altered her decision on 23 March, but I think it is probably arguable that the conditions for a valid waiver were not met. In particular, she was put into a difficult position by the delay in disclosing the apparent bias problem, and Miss O’Rourke draws my attention to the fact that there was always the possibility of a wasted costs order, as to which the chairman of the Employment Tribunal himself drew attention in his comments of 21 March 2011. I would add that I am also attracted by Miss O’Rourke’s arguments about the training day on which Mr Whiteman and one of the lay members of this Employment Tribunal panel, Mr Carter (I think it was) met. The emphasis placed by the Employment Tribunal and on the EAT has generally been on the absence of any discussion of this case between those two individuals. There is no doubt that they behaved properly, so far as one can see, when they discovered that relationship, but Miss O’Rourke has the proper argument that the mere knowledge on the part of Mr Carter that one of the respondents had been appointed as a fellow lay member of tribunals was itself relevant to the issue of bias and waiver. This is the “collegiality issue”, as it has been described.

I do not propose to say anymore. I grant permission, as I have indicated. I do not seek to limit the grounds which may be advanced. One day should be enough; this court reads the papers in advance. Either three Lords Justices of Appeal or two plus a High Court Judge, but what is important is that the full court which hears this matter should have at least one judge in the constitution who has had experience of sitting in the EAT.